Inchoate or continuing crime
|Appeal Judgement - 28.11.2007||
NAHIMANA et al. (Media case)
720. The Appeals Chamber considers that the notions “inchoate” and “continuing” are independent of one another. An inchoate offence (“crime formel” in civil law) is consummated simply by the use of a means or process calculated to produce a harmful effect, irrespective of whether that effect is produced. In other words, an inchoate crime penalizes the commission of certain acts capable of constituting a step in the commission of another crime, even if that crime is not in fact committed. As stated at the beginning of this chapter, the crime of direct and public incitement to commit genocide is an inchoate offence, like conspiracy to commit genocide (Article 2(3)(b) of the Statute) and attempt to commit genocide (Article 2(3)(d) of the Statute).
722. A continuing crime implies an ongoing criminal activity. According to Black’s Law Dictionary, a continuing crime is:
1. A crime that continues after an initial illegal act has been consummated; a crime that involves ongoing elements […] 2. A crime (such as driving a stolen vehicle) that continues over an extended period.
723. The Appeals Chamber is of the opinion that the Trial Chamber erred in considering that incitement to commit genocide continues in time “until the completion of the acts contemplated”. The Appeals Chamber considers that the crime of direct and public incitement to commit genocide is completed as soon as the discourse in question is uttered or published, even though the effects of incitement may extend in time. The Appeals Chamber accordingly holds that the Trial Chamber could not have jurisdiction over acts of incitement having occurred before 1994 on the grounds that such incitement continued in time until the commission of the genocide in 1994.
724. […] Thus, even if it could be concluded that the totality of the articles published in Kangura and of the RTLM broadcasts constituted one continuing incitement to commit genocide (a question that the Appeals Chamber does not consider necessary to decide here), the fact would remain that the Appellants could be convicted only for acts of direct and public incitement to commit genocide carried out in 1994.
 See Roger Merle et André Vitu, Traité de droit criminel, 7èmeédition, Tome 1, Paris, 1997, No.˚ 514. See also Musema Trial Judgement, para. 193, and Akayesu Trial Judgement, para. 562.
 In this respect, see Black’s Law Dictionary (8th ed., 2004), definition of “inchoate offense” (“A step toward the commission of another crime, the step in itself being serious enough to merit punishment”).
 Bryan A. Garner (ed.), Black’s Law Dictionary, 8th ed. (Saint Paul, Minnesota: Thomson West Publishing Company, 2004), p. 399.
 Judgement, para. 1017.
|ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c)|
|Appeal Judgement - 29.09.2014||
234. […] [T]he Appeals Chamber recalls that direct and public incitement is an inchoate crime and that it is punishable even if no act of genocide has resulted therefrom. In light of this, the actus reus of direct and public incitement is satisfied when a person directly and publicly incites the commission of genocide, irrespective of whether his or her acts were likely to cause the crime of genocide. Accordingly, the Appeals Chamber rejects Nzabonimana’s contention that, to establish direct and public incitement to commit genocide, it must be proven that the accused’s actions were likely to cause the commission of the crime of genocide.
 Nahimana Appeal Judgement, para. 678.
 See Nahimana Appeal Judgement, para. 678.
|ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c)|
|Appeal Judgement - 14.12.2015||
NYIRAMASUHUKO et al. (Butare)
469. The Appeals Chamber recalls that when an accused is charged with conspiracy to commit genocide pursuant to Article 2(3)(b) of the Statute, the Prosecution must plead in the indictment: (i) an agreement between individuals aimed at the commission of genocide; and (ii) the fact that the individuals taking part in the agreement possessed the intent to destroy in whole or in part, a national, ethnical, racial, or religious group, as such. […]
473. The Appeals Chamber is of the view that, contrary to the Trial Chamber’s determination, there is no requirement for the Prosecution to specify in the Indictment when the conspiracy ended. The crime of conspiracy to commit genocide is an inchoate offence, the actus reus of which is “a concerted agreement to act for the purpose of committing genocide”, and does not require evidence of the time range and end of the conspiracy. Of significance is when the agreement was formed, not when it ended. Therefore, the Appeals Chamber finds that the Trial Chamber erred in determining that the Indictment was defective because it failed to specify “when the conspiracy ended”.
474. […] Moreover, contrary to Nyiramasuhuko’s assertion, the Appeals Chamber considers that the specific individuals with whom the accused is alleged to have reached the agreement aimed at the commission of genocide do not necessarily have to be identified by name and that identification by general category in the Indictment can be sufficient to provide adequate notice to the accused.
 Nzabonimana Appeal Judgement, para. 255; Nahimana et al. Appeal Judgement, para. 344.
 See Trial Judgement, para. 5661.
 See Karemera and Ngirumpatse Appeal Judgement, para. 643, quoting Nahimana et al. Appeal Judgement, para. 896. See also Nzabonimana Appeal Judgement, para. 391; Gatete Appeal Judgement, para. 260; Nahimana et al. Appeal Judgement, para. 894.
 Cf. Nzabonimana Appeal Judgement, para. 400; Karemera and Ngirumpatse Appeal Judgement, para. 370. The Appeals Chamber further finds that the fact that other members of the Interim Government were not convicted for conspiracy before the Tribunal is irrelevant to the question of whether Nyiramasuhuko was put on notice of the charges against her and is not inconsistent with the fact that Nyiramasuhuko was charged with having conspired with other members of the Interim Government. Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 121.